EU Law TOTAL

Court of Justice of the European Union a. Composition b. Tasks/competences c. Voting rules

Art 19 TEU a. Composition: CJEU = - Court of Justice (ECJ) - General Court (Court of First Instance) - Specialised Courts (only Civil Service Tribunal from 2014-2016) b. Task: ensuring the correct interpretation and application of EU law Competences: three categories Three categories (Art. 19(3) TEU) 1. Direct actions, dispute settlement A versus B - institution vs. institution (institution as in Parliament, Commission etc.) (mostly initiation by Commission) - member state vs. member state (very rare) (example: Hungary v Slovakia) - member state vs. institution (or vice versa) (A LOT: very successful; Commission wins a lot) - private individuals vs. institution 2. Give preliminary rulings at the request of national judges (article 267 TFEU) - private individuals vs. member state - private individuals vs. private individuals 3. Various other tasks, e.g. giving advisory opinions on draft agreements EU-third countries/IOs (Article 218(11) TFEU)

European Council a. Composition b. Tasks/competences c. Voting rules

Art. 15 TEU a. Heads of State or Government + its own President + President Commission b. Provide impetus and set out general political directions and priorities of EU - no legislation c. Consensus, unless...

Council (of Ministers) a. Composition b. Tasks/competences c. Voting rules

Art. 16 TEU a. - 28 representatives of the governments (ministers) --> 'intergovernmental' institution - 10 different configurations b. Legislator (together with EP) and Budgetary powers (also together with EP) c. QMV (Qualified Majority Voting), unless... - unanimity --> e.g. Art. 113 TFEU (harmonization indirect taxes) or 352 TFEU ('unforeseen cases') - simple majority à e.g. Art. 240(3) TFEU (Rules of Procedure) Definition of QMV in Council? - Art. 16(4) TEU: 55% and 65% rule as from 1 November 2014 - Art. 16(5) TEU: but transitional period until 31 March 2017

In order to increase the effective functioning of the European Commission, the drafters of the Lisbon Treaty agreed that, as from 1 November 2014, the Commission shall consist of a number of members corresponding to two thirds of the number of Member States. Then, how is it possible that the current Juncker Commission (2014-2019) consists of 28 members, one commissioner from each Member State?

Art. 17(4) TEU provides that while indeed, the Commission should officially consist of 2/3 number of commissioners after the 31stof October 2014, this can be subject to change should the Council unanimously vote to make changes to this rule. This occurred when in 2013 the Council decided unanimously to retain the 1 commissioner/per 1-member rule in response to Ireland prior to the second referendum on the Lisbon treaty (compromise). This measure will be reflected upon either prior to the next Commission taking power in 2019 OR when the 30th member accedes to the Union, "whichever happens first."

Under which provision(s) does the Court of Justice have jurisdiction to declare the Union's draft treaty for accession to the ECHR incompatible with Union law? And, why has the Court in fact done so?

Art. 218(11) TFEU - binding opinion. Why not action for annulment? Because it's a DRAFT decision. CJEU negative Opinion 2/13. Why? CJEU wants to keep final say on EU laws! Doesn't want to give it away to an external court. BUT: CJEU never considered itself materially bound by the European Convention on Human Rights. Has drawn inspiration from common constitutional traditions and the ECHR instead.

Decision-making competences EU: Legal Instruments

Art. 288 TFEU: "To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. - A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. - A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. - A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. - Recommendations and opinions shall have no binding force".

Explain how the ECJ interpreted the prohibition on customs duties and charges having equivalent effect between Member States of the EU. And what is the difference with the prohibition on discriminatory taxes?

Art. 30 TFEU: - customs duties (CD) and charges having equivalent effect (CEE) between MS are prohibited - catches national measures that impose a charge on goods when crossing a frontier. - CJEU on definition CEE in Outokumpu Oy: '...any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is nog a customs duty in the strict sense...' (para. 20) --> CEE now completely prohibited. Art. 110 TFEU, when: Foreign AND domestic goods are subject to internal taxation. Prohibition (not absolute) of:1. Discriminatory tax measures: 110(1)similarity = key. "No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products"Case of Outokumpu Oy 2. Protective tax measures: 110(2)broader application: general disadvantages, also if there's no similarity as such."Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products"broader application: general disadvantages. Case of Beer & WineArt. 30 and 110 are mutually exclusive, see Outokumpu Oy (para. 19).

Decision-making competences EU: Legal Bases

Art. 43(2) TFEU Art. 113 TFEU Art. 114(1) TFEU Art. 168(5) TFEU Art. 352(1) TFEU

Decision-making competences EU: Exercise of Competences

Art. 5 TEU "1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. ... 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.... 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties...."

Since World War 2, European States have been a party to various human rights treaties, including the European Convention on Human Rights. What then is the added value of the Charter of Fundamental Rights of the European Union? Again, include in your answer the relevant case law of the CJEU prescribed for this week.

Art. 51(1) Charter: primarily for EU institutions to be bound, because EU is not a party to human rights treaties! MS were already bound. Art. 51 = scope of application! "The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union [...] and to the Member States only when they are implementing Union law." Relevant case law: Applied Against Institutions --> Digital Rights Ireland Applied Against Member States--> Akerberg Fransson Applied Between Private parties --> Bauer

CASE: Outokumpu Free Movement of Goods: 1. Financial barriers 2. Non Financial barriers

Article 110(1) TFEU ECJ: "Article 110(1) TFEU precludes an excise duty which forms part of a national system of taxation on sources of energy from being levied on electricity of domestic origin at rates which vary according to its method of production [6% and 10%] while being levied on imported electricity, whatever its method of production, at a flat rate [8%] which, although lower than the highest rate applicable to electricity of domestic origin [8% is less than 10%], leads, if only in certain cases, to higher taxation being imposed on imported electricity [8% is more than 6%] ".

CASE: Beer and Wine Free Movement of Goods: 1. Financial barriers 2. Non Financial barriers

Article 110(2) TFEU "Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products" Imported Domestic Wine 20% 20% Beer 5% 5% • Host country produces a lot of beer, and hardly any wine • Tax rate (much) lower for your 'own' product (beer) • Beer and wine, though not "similar", compete with each other, depends on consumers' behaviour Issue: Can the UK impose a higher excise duty on wine than on beer? Rule: Art. 258 TFEU, Art. 110 TFEU Analysis: Art. 110 TFEU prohibits any tax provision whose effect is to impose higher taxation on imported goods than on similar domestic products (§5), nor on products that are without fulfilling the criterion of similarity are still in competition with products of the importing country. A MS may not afford indirect protection to a domestic product by levying a higher tax provision on the competing goods. Competition between wine and beer? Show that the tax is likely to bring about a protective effect Commission: There is a competitive relationship; some consumers may substitute the two goods for each other and they belong to the same category of alcoholic beverages with the same purposes. UK: Products have different substance and price structure; wine is far more expensive; beer is more popular, wine is more unusual. Comparison through tax burden in relation to the alcoholic strength of the beverages in question (§19). Margin of discrimination against wine: 100-125% Through the effects of taxation, wine is a luxury product in the UK and an ordinary consumer product in other MS (§23). Conclusion: No final judgment, re-examination of the facts.

Decision-making competences EU: Ordinary Legislative Procedure

Article 289 and 294 TFEU --> Three 'readings' (=phases)

CASE: Dassonville

Article 34 on import restrictions: Dassonville, para. 5 = very broad interpretation of MEE: "All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered MEE's" [and therefore prohibited] - only MS measures - but Spanish Strawberries - also covers 'no distinction' measures - result --> mutual recognition FACTS: Benoit and Dassonville claimed that their prosecution for selling Scotch whisky without a certificate was contrary to the TEEC article 30 (now TFEU art 34). A Belgian law said Scotch whisky and other products that had a designation of origin could only be sold if accompanied with a certificate of origin. Competitors had exclusive dealing arrangements with UK exporters, and so they had acquired the whisky from France. However, in France, it was impossible to obtain a certificate because French law did not require certificates. Benoit and Dassonville were accused of forging a certificate and prosecuted. In response, they challenged the legality of the certificate law, based on the rule in article 30 that there should be no quantitative restrictions on trade, or measures of equivalent effect. The Belgian authorities, the Procureur du Roi contended that because the purpose was to protect consumers, not regulate trade, the measure fell outside TEEC article 30. The Belgian court referred the case to the European Court of Justice. Issue: Does a national provision which requires imported products to bear a designation of origin accompanied by an official document issued by the gov of the exporting country certifying a right to such designation constitute a MEEQR? Rule: Art. 267 TFEU, Art. 34, 36 TFEU Analysis: Belgium instituted criminal proceedings against traders who imported Scotch into Belgium without having a certificate of origin from the British customs. §5: "All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as MEEQR's." The requirement by a MS of a certificate of authenticity, while there is no such requirement in other MS, constitutes a MEEQR. Conclusion: The requirement of a designation of origin accompanied by a certificate of authenticity constitutes an MEEQR and is therefore not allowed.

CASE: Reinheitsgebot

Beer with additives cannot be called "Bier" in Germany. Germany: for reasons of public health. Consumers used to linking the word "Bier" only to those products with traditional ingredients; long term effects of additives are unknown. Public health protection = Art. 36 TFEU. And: consumer protection. ECJ: • BOTH sub criteria of proportionality failed. 1. Not necessary 2. Not suitable Don't call it "Bier" = Consumer protection 35. It is admittedly legitimate to seek to enable consumers who attribute specific qualities to beers manufactured from particular raw materials to make their choice in the light of that consideration. However....that possibility may be ensured by means which do not prevent the importation of products which have been lawfully manufactured and marketed in other Member States and, in particular, by the compulsory affixing of suitable labels giving the nature of the product sold. In so many words: prohibition to use name 'Bier' for beer with additives = not proportionate - not necessary Don't market it in Germany = Public Health 49 ...it appears ...that some of the additives authorized in other Member States for use in the manufacture of beer are also authorized under the German rules...for use in the manufacture of all, or virtually all, beverages. Mere reference to the potential risks of the ingestion of additives in general and to the fact that beer is a foodstuff consumed in large quantities does not suffice to justify the imposition of stricter rules in the case of beer. In so many words: complete ban of beer with additives = not proportionate - not suitable. Paras. 53, 54. SEE Cassis de Dijon: 13....the mandatory fixing of minimum alcohol contents cannot be seen as being an essential guarantee of the fairness of commercial transactions, since it is a simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of products.not proportionate. Facts German law requires all beer being sold to contain only 5 ingredients Foreign importers of beer wants to add shit in their beer but still wants to market their drink as 'beer' Question: did german law violate TFEU A34 (prohibition on MEES of quantitative restriction)? Court: yes, this is an issue of product requirement (like cassis de Dijon), this would unfairly hinder the marketing and selling of foreign beers (like gourmet)

The European Treaties are drawn up in several languages that are equally authentic. Which languages? And which languages after Brexit?

Each country has the right to propose ONE language as an official language of the European Union. Subsequently, each treaty must be made available in each of those languages. Given that Ireland has nominated Gaelic, following Brexit English will no longer be an official language of the EU. However, given that the Commission will retain English as one of its three "working languages" (alongside French and German) the treaties will continue to be available in English.

Free Movement of Goods: 1. Financial barriers 2. Non Financial barriers

Established in: - Article 30 TFEU - Article 110 TFEU Article 30 TFEU Customs duties (CD) and Charges having Equivalent Effect (CEE) between MS are prohibited: - CD now completely prohibited, in the past no new CD (and CEE) = former Article 12 EEC, Van Gend & Loos - Definition CEE = Outokumpu = "any pecuniary charge on goods circulating within the EU by virtue of the fact they cross a national border" Purpose and amount CEE irrelevant For example charges for inspections of imported goods (inspection itself = MEE) Article 110 TFEU Prohibition of: - Discriminatory tax measures: para. 1 "No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products" - Protective tax measures: para. 2 "Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products"

CASE: Keck

FACTS: Keck and Mithouard were prosecuted in France under anti-dumping retail laws for selling Picon liqueur at below cost price. Keck and Mithouard contended that their prosecution under French law, for selling products below wholesale prices, contravened TEEC article 28 (now TFEU art 34). A French competition law prohibited retail of products for prices below that which they had been purchased wholesale. The aim of this law was to prevent retailers engaging in 'cut-throat competition' by dumping excess produce onto the market, and forcing competitors out of business. Keck and Mithouard were charged with having sold Picon liqueur and Sati Rouge coffee below the purchase price. They argued that the law would discourage imports because importers are often new entrants to the market, and while trying to acquire market share and brand recognition they may wish to cut price. JUDGEMENT: Court of Justice held that the French law was not incompatible with TEEC article 30 (now TFEU article 34) because the purpose was not to regulate trade. If a rule applies to all traders in the same manner, and affects them in the same way in law and in fact, it is lawful if it is merely a selling arrangement. This was the case for the French anti-dumping rules. Keck regime on 'selling arrangements': - Companies invoked Art. 34 TFEU more and more often, e.g. shops are closed on Sundays, no advertisements for tobacco/alcohol, no resale of goods at a loss. - Reaction Court in Keck: "By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions [1] apply to all relevant traders operating within the national territory and [2] so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States" (para. 16) Distinction since Keck: - Product requirements - still fall under scope 34 TFEU - Selling arrangements - no longer under scope of 34 TFEU - But these national measures on selling arrangements: - must apply to all relevant traders - must affect in the same manner, in law and in fact, all products Second Keck condition not fulfilled in Gourmet (prohibition of advertisements for alcohol in Sweden), and so this national measure did fall under scope of 34, and so Sweden had to justify this prohibition. Issue: Does the French provision, which prohibits resale at a loss, constitute a MEEQR under Art. 34 TFEU? Rule: Arts. 34, 267, 18 TFEU. Analysis: Mr. Keck owned a retail shop and resold product in an unaltered state for lower than the purchasing price and was prosecuted for this. The prohibition on 'resale at a loss' may disadvantage shopkeepers vis-à-vis competitors in MS where resale at a loss is allowed (§7) The prohibition on resale at a loss does not constitute discrimination. National legislation imposing a prohibition on resale at a loss is not designed to regulate trade in goods between MS. As long as national provisions that restrict selling arrangements apply to all relevant traders operating within the national territory and affect them in the same manner these provisions do not constitutes MEEQRs. Conclusion: Art. 34 TFEU does not prohibit legislation of a MS imposing a general prohibition on resale at a loss. 1. provisions must apply to all relevant traders operating within the national territory 2. provisions must affect in the same manner, in law and in fact, the marketing of domestic products and of those from other MS (para 16)

CASE: Cassis de Dijon

FACTS: Rewe was a large German importer and retailer which wanted to sell a type of crème de cassis, a fruit liqueur, known as Cassis de Dijon. This was produced in France and contained between 15-20 per cent alcohol by volume (ABV). Germany, however, had a law specifying that products sold as fruit liqueurs be over 25 per cent ABV. The Bundesmonopolverwaltung für Branntwein (Federal Monopoly Administration for Spirits), part of the Federal Ministry of Finance, informed Rewe that it would not be able to market Cassis in Germany as a liqueur. Rewe challenged the decision as a breach of European law, specifically of Article 30 Treaty of Rome (TEC). JUDGEMENT: The ECJ held that the German legislation represented a Measure having an Equivalent Effect to a quantitative restriction on imports and was thus in breach of article 34 of the Treaty. Issue: Compatibility of a German national provision relating to the marketing of alcoholic beverages fixing a minimum alcoholic strength for various categories of alcoholic products with Community law. Rule: Arts. 267, 34 and 37 TFEU Analysis: Marketing of fruit liqueurs is conditional upon a minimum alcohol content of 25% in Germany, whereas in other MS, fruit liqueurs of an alcohol content of 15-20% are freely marketed. Disparities between national laws relating to the marketing of products are acceptable in so far as those provisions are necessary to satisfy mandatory requirements, relating in particular to the effectiveness of fiscal supervision the protection of public health the fairness of commercial transactions the defence of the consumer Germany relates the provision to the protection of public health and to protection of the consumer against unfair commercial practices. §14: "The requirements relating to the minimum alcohol content of alcoholic beverages do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community." Conclusion: The fixing of a minimum alcohol content for alcoholic beverages falls under the definition of a MEEQR and is therefore not allowed.

Justifications for barriers to trade:

FIRST LOOK AT IMAGE The Rule of Reason Exceptions: Cassis de Dijon (1979), para. 8: · Obstacles to movement within the Community [EU] resulting from disparities between the national laws relating to the marketing of the products in question · must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating · in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. Non-exhaustive list of other public interests - new exceptions may be accepted by the ECJ every day, e.g.: • Schmidberger: protection of the right to demonstrate = freedom of expression, assembly (more generally: protection of fundamental rights) • Reinheitsgebot: protection of the consumer (and also public health protection = 36 TFEU) • Omega Spielhallen: protection of 'human dignity' justifies restrictions to free movement • Walloon Waste: environmental protection Proportionality Measure of MS that needs justification (Treaty or RoR) must be proportional: Suitable: national measure must be capable to protect the interest that needs protection Necessary: MS must choose the least restrictive alternative [Stricto sensu: restriction is not in proportion with the objective pursued. Actual balance of interests]

CASE: Working Time Directive

Facts - Council adopted a directive (work 48 hours a week) based TFEU Article 153 (OLP) - UK: no specific legal basis exist, so we should rely on TFEU Art. 352 (SLP) - Question: which legal basis is right? - Court: council is right The main purpose was protection of health and safety, working too long is bad - The council couldn't explain why Sunday is the best rest day, so the court got rid of that. Working Time Directive UK v Council of the EU UK is still furious about decision Directive adopted by Council that limited working week to 48 h with the purpose to protect the health and safety of workers Council: right basis is Art. 153 TFEU UK: Art. 153 only sees to physical "working environment", not working hours Principle of subsidiarity No explicit legal basis, so need to use Art. 352 instead - requires unanimity in Council CJEU: Art. 153 TFEU is right basis = Council won If you work too much, it's threatening your health → broad interpretation of "working environment" Directive has EFFECT on the internal market, but isn't the central feature. So no annulment of the Directive (para. 22) Principle of subsidiarity not harmed, para. 55 & 58. NB Court has NEVER declared a legislative act void because of that. Political question: not up for the CJEU to consider

CASE: Tobacco Advertising

Facts A. Council adopted a directive (ban all tobacco advertisement) based on TFEU A114 (OLP) - Internal market because harmonized tobacco marketing B. Germany: smoking is bad for your health, so we should rely on TFEU A168 (OLP, but prohibits harmonization) C. Question: which legal basis is right? D. Court: Germany is right - Banning tobacco advertising does not improve market conditions nor remove existing obstacles Germany v the EP and the Council Directive banned ALL advertising on tobacco, incl. on parasols, posters and ashtrays on the basis of Art. 114 TFEU (harmonization), OLP Motivation: such big differences in MS that certain advertising companies/producers were disadvantaged Germany: smoking is bad for your health. There is no legal basis to harmonize, in fact Art. 168(5) prohibits harmonization of laws "designated to protect and improve human health" CJEU: That is justified when, in line with Art. 114: The Directie actually contributes to eliminating obstacles to the free movement of goods & services or; It removes distortions of competition Both arguments are not convincing enough (para. 98 and 99). Ban too wide/general → Directive annulled. It was the first time the Court did that; it really wanted to make a point: conferral is important BUT door open to the future for SPECIFIC forms of bans, para. 97 & 117 Happened in 2003, for press, printed media products, radio, broadcasts etc. Germany lost new lawsuit in 2006

CASE: Spanish Strawberries

French farmers were actively attacking trucks from Spain importing goods (esp strawberries), threatening foreign farmers etc. Commission had received complaints about the passivity of the French government for over a decade. Paras. 29 - 32, 65-66.30. "It [Art. 34 TFEU) also applies where a MS abstains from adopting the measures required in order to deal with obstacles to the free movement ofgoods which are not caused by the State." 65. "...French government has manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism..." 66. "Consequently... it must be held that...the French government has failed to fulfil its obligations under Article 34" Issue: The Commission claims that the French State has not done enough to prevent the free movement of fruit/vegetables from being obstructed by actions by private individuals. Rule: Art. 34, 258 TFEU; Art. 4(3) TEU Analysis: The organization 'Coordination Rurale' has since 1993 tried to threaten wholesalers and retailers to only stock French products. Their campaign has been particularly aimed at Spanish strawberries and Belgian tomatoes. The free movement of goods requires the elimination of all barriers, direct or indirect that have the potential to restrict inter-MS trade. Art. 34 TFEU also requires MS to adopt measures required to deal with obstacles to free movement of goods not caused by the State. So, negative duty to abstain from imposing barriers and positive duty to take all necessary and appropriate measures to eliminate barriers. Community may not prescribe the required measures though. The French government has failed to adopt all necessary and appropriate measures in order to ensure the free movement of goods. Conclusion: The French government has failed to fulfil its obligations under Art. 34 TFEU.

What is (or are) the procedure(s) by which the European Treaties can be amended? Describe the role of the various actors involved. A. ordinary revision procedure

In short the ordinary revision procedure proceeds as follows: if the majority of the European Council agreesthat one or both of the treaties require changing a Convention is convened. If the changes needed are not drastic an intergovernmental conference is called without a Convention. If the Convention or intergovernmental conference reach an agreement on changes to the treaties each member state must approve of the changes. If the proposed changes to the treaties only affect certain policy areas the simplified revision procedure might be used. i. In detail:Step 1: initiative The goverment of any Member State, the European Parliament or the European Commission may submit a proposal to the Council of Ministers to amend the European treaties. The Council, in turn, submits the proposal to the European Council and notifies the national Parliaments. ii. Step 2: proposal is considered by the convention After consulting the European Parliament and the Commission, the European Council decides, by simple majority voting, whether to take the proposal in consideration or not. Negotiations on the proposed treaty amendment(s) are conducted by a Convention, composed of representatives of the national parliaments, the European Council, the European Parliament and the European Commission. If the proposal concerns institutional changes in the field of monetary policy the European Central Bank is consulted. The Convention decides, by consensus, to submit the final proposal to an Intergovernmental Conference. iii. Step 3: approval The Intergovernmental Conference has to approve of the proposed amendment(s) to the treaties by consent. Finally, each member state separately has to approve the proposed treaty amendment(s).

What is (or are) the procedure(s) by which the European Treaties can be amended? Describe the role of the various actors involved. B. simplified revision procedure

In short, the simplified procedure, proceeds as follows: the European Council must unanimously decide to amend part of the Treaty. Next, all Member States must seperately approve of the proposed amendment(s). i. Step 1: Initiative The Government of any Member State, the European Parliament or the Commission may submit to the European Council a proposal to revise the European Treaty. ii. Step 2: treatment of the proposal After consulting the European Parliament and the Commission, the European Council may take a unanimous decision to adopt the treaty reform proposal. The European Central Bank wil also be consulted if the proposed amendments involve changes to monetary policy. iii. Step 3: aprooval member states Each member state must ratify the treaty separately.

CASE: Internationale Handelsgesellschaft

Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel also known as "Solange I", is an EU law case and German constitutional law case concerning the conflict of law between a national legal system and the laws of the European Union. Facts - You can only export if you have a licence and if you deposit some money, and if the other side (importer) doesn't import the goods, then you would lose your deposit - IH lost its deposit, claimed that the system is invalid because it is contrary to HR under German constitution as you can only impose on citizens rules that are necessary for public objectives - It intervenes with the freedom of disposition and econoimc liberty - Question: does EU law have primacy over national law especially fundamental rights in the MS constitutions - Court: full supremacy of community law, national law needs to amend itself to fit EU law not vice versa otherwise EU law would be called into question - Also: fundamental rights of a MS can't affect the validity of community law JUDGEMENT: The ECJ held that the validity of EU measures cannot be challenged on grounds of national law rules or concepts, even if that is a violation of fundamental human rights provisions in a member state's constitution

van gend en loos 1963

Issue: Can nationals of a MS use EU law to claim individual rights before a national court, i.e. do EU provisions have direct effect? Rule: Art. 30 TFEU Analysis: States have acknowledged that Community law has an authority that can be invoked by their nationals before national courts and tribunals (§13). The Community constitutes a new legal order of international law for the benefit of which States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only MS but also their nationals (§14). Community law imposes rights and obligations on individuals (§14). Requirements for provisions to have direct effect (§16): Clear and unconditional wording Negative obligation; implementation is not dependent on positive legislative measures enacted under national law. Art. 30 TFEU contains a clear and unconditional prohibition which is not a positive but a negative obligation, thus it must be interpreted as producing direct effects and creating individual rights which national courts must protect (§21). Conclusion: EU law can produce direct effect and create individual rights which the national courts must protect, such as with Art. 30 TFEU.

CASE: Gourmet

Issue: Do the provisions on free movement of goods preclude a national provision that prohibits advertisements for alcoholic beverages, such as the one in Sweden with the purpose to reduce consumption of alcohol?Rule: Arts. 34, 36, 52, 56, 267 TFEU. Analysis: National provisions that restrict selling arrangements are allowed if they apply to all relevant traders and affect them all in the same way (Keck). An outright prohibition may have a greater impact on products from other MS. Domestic products, whose consumption is linked to traditional social practices, are instantly more familiar to consumers than foreign brands of the same good (§21). A prohibition on advertising of alcoholic beverages therefore affects products from other MS more than domestic products, which is an obstacle to trade under Art. 34 TFEU (§25). Justification: Public health, or another general interest ground under Art. 36 TFEU. Measure must be proportionate and not constitute either a means of arbitrary discrimination or a disguised trade restriction between MS. There is no evidence that the marketing prohibition has another purpose than public health grounds. It is a question for the national court to assess whether the prohibition is an appropriate means to the aim (§33). The prohibition on marketing affects the cross-border supply of advertising space (§39). Still allowed on public health grounds if national court finds it appropriate (§41). Conclusion: Art. 34 TFEU does not preclude a provision on the prohibition of advertising of alcoholic beverages, unless the protection of public health against the harmful effects of alcohol can be achieved through measures having less effect on intra-Community trade.

outokumpu OY

Issue: Excise duty levied on electricity of domestic origin which vary based on its method of production, while there is a flat rate for imported electricity. The flat rate is higher than the lowest duty, but lower than the highest duty. Rule: Arts. 267, 28, 30 and 110 TFEU Analysis: A charge is not a CEE if it falls within a general system of internal does applying systematically to objective categories without regard to the origin of the products (§20). In order for a charge to be part of a general system, the charge must be imposed on domestic and imported products identically. In casu, the rates of tax differ depending on whether the electricity is of domestic origin or imported. An internal tax infringes art. 110 TFEU if the taxation on the imported product and on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, even if only in certain cases, to higher taxation being imposed on the imported product. The tax burden imposed on imported products must thus be compared with the lowest tax burden imposed on electricity of domestic origin. Practical difficulties, such as not being able to see the eco friendliness source of imported electricity, cannot justify discriminatory internal taxation (§38). The current Finnish legislation does not even give the importer the opportunity of showing that his energy is produced in the same way as the lower tax domestic energy. Conclusion: The excise duty, even part of an internal system of taxation, is not allowed since it imposes a flat rate that is always higher than the lowest rate of taxation imposed on domestic products.

gybrecht CASE

Issue: Is a national provision that prohibits that sellers to require that consumers provide their payment card number a (justified) MEEQR? Rule: Arts. 34, 35, 36 TFEU Analysis: The prohibition has a stronger effect on goods leaving the market of the exporting MS than on the goods in the domestic market of that MS, thus the prohibitions constitute an MEEQR (§43, 44). Justifications: Requirement of public interest and proportionate (does not go beyond what is necessary to attain the aim) Consumer protection may constitute a legitimate objective (§47). Value of the prohibition on a supplier requiring a consumer's payment card number resides only in the fact that it eliminates the risk that the supplier may collect the price before expiry of the period of withdrawal (§60). If that risk materialises that is covered by Art. 80(3) of the Law on consumer protection, which is an appropriate measure for consumer protection. The prohibition here goes beyond what is necessary to attaint he objectives pursued. Conclusion: Art. 35 TFEU does not preclude a provision that prohibits a supplier from requiring an advance or any payment from a consumer before expiry of the withdrawal period, but does preclude a prohibition on requesting the number of the consumer's payment card.

AMS Case

Issue: May an Article of the Charter, in conjunction with a Directive, be invoked in a national court in order to disapply a national provision? Rule: Art. 27 of Charter (Workers' right to information and consultation within the undertaking) Analysis: Does the Directive meet the conditions to have direct effect? Unconditional Sufficiently precise (§31). §35: Art. 3(1) of the Directive has direct effect. A Directive that confers rights and obligations cannot of itself apply in proceedings exclusively between private parties (§36) The obligation of a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem. Art. 27 by itself does not suffice to confer to individuals a right they can invoke in private proceedings Conclusion: Art. 27 cannot be invoked in a proceeding between private parties to disapply a national provision, which is incompatible with EU law

What is, according to the Court of Justice of the European Union, the scope of the principle of "effective judicial protection" in the context of the fight against terrorism? Include in your answer the relevant case law of the CJEU prescribed for this week.

Kadi case continued: Para. 324 - 326, 334, 335, 351. At the UN level there's no effective judicial protection, so we will do the job (CJEU). Stubborn case of CJEU? "International law not higher than our own system"? 324. The Guidelines of the Sanctions Committee, as last amended on 12 February 2007, make it plain that an applicant submitting a request for removal from the list may in no way assert his rights himself during the procedure before the Sanctions Committee or be represented for that purpose, the Government of his State of residence or of citizenship alone having the right to submit observations on that request. 325. Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons. 326. It follows that the Community judicature must (...) ensure the review, in principle the full review, of the lawfulness of all Community action in light of the fundamental rights forming an integral part of the general principles of EU law, including review of EU measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the United Nations SC under Chapter VII of the Charter of the UN.

Explain the difference between the exceptions of Article 36 TFEU and the "Mandatory Requirements" (or: "Rule of Reason") exceptions.

Key difference = discriminatory nature of national restriction. 1. Discriminatory national measures can only be justified by reference to express and exhaustive list of public interest grounds in article 36. 2. National measures that do not discriminate will benefit from an open ended list of implied 'mandatory requirements'

1995 Accession Austria, Finland, Sweden

Now 15 MS

2004, 1 May, The Big Bang: Accession of 10 MS

Now 15 MS: Accession of: Cyprus and Malta; Latvia, Lithuania, Estonia, Poland, Hungary, Slovenia, Slovakia, Czech Republic

2007 Accession Bulgaria and Romania

Now 27 MS

2013, 1 July, Accession Croatia

Now 28 MS

CASE: Accession EU to ECHR (Opinion 2/13)

Opinion 2/13 (2014) is an EU law case, concerning the accession of the European Union to the European Convention on Human Rights, and the power struggle of the Court of Justice of the European Union to maintain its perceived preeminence. FACTS: The Commission asked the Full Court whether, in its view, the Draft Agreement on Accession of the EU to the European Convention on Human Rights was compatible with the Treaties. -> on request of the European Commission under Article 218 (11) TFEU JUDGEMENT: The Court of Justice held that the EU could not accede to the ECHR under the Draft Agreement. It held the Agreement was incompatible with TEU article 6(2). Its reasons suggested the Draft Agreement : (a) undermined the Court of Justice's autonomy (b) allowed for a second dispute resolution mechanism among member states, against the treaties (para (c) the "co-respondent" system, which allowed the EU and a member state to be sued together, allowed the ECtHR to illegitimately interpret EU law and allocate responsibility between the EU and member states; (d) did not allow the Court of Justice to decide if an issue of law was already dealt with, before the ECtHR heard a case; and (e) the ECtHR was illegitimately being given power of judicial review over Common Foreign and Security Policy. Lecture: Main Issues: - Review on request of the European Commission under Article 218 (11) TFEU - The autonomy of the EU legal order (para 170...181) NB see cases for this week listed there! - The monopoly on dispute settlement - Article 344 TFEU (paras 201...); Other reasons: - The co-respondent mechanism (paras 215...); - The procedure for the prior involvement of the CJEU (paras 236...) - The specific characteristics of EU law concerning judicial review in matters of the CFSP (paras 249...)

The Polish Government strongly opposes a proposal for a new Directive on equal treatment on the basis of sexual orientation and decides to instruct the Polish Commissioner in the European Commission to persuade his colleagues that the proposal is to be withdrawn. What EU institutional rule would the Polish Government violate by such action?

Poland would go against the institutional rules of the European Commission, which holds in Art. 17(3) that Commissioners can under no circumstance be instructed by a Member-State and must fulfil their duties not as representatives of their sending state, but as a representative of the Union.

CASE: Bauer

Private parties - Bauer, 2018 Bauer: right to pay annual leave, between worker/employer (afterworker's death) German law: right disappears after death. Directive: no! So no correct implementation of the directive. Can the Charter be invoked by private parties against other private parties (horizontal direct effect)? Since Bauer CJEU: yes. Para. 87 & 88-90. 2. The requests have been made in two sets of proceedings between, in Case C- 569/16, Stadt Wuppertal (town of Wuppertal, Germany) and Mrs Maria Elisabeth Bauer and, in Case C-570/16, Mr Volker Willmeroth, in his capacity as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e.K., and Mrs Martina Broßonn, concerning the refusal by Stadt Wuppertal and Mr Willmeroth, respectively, in their capacity as former employers of the late husbands of Mrs Bauer and Mrs Broßonn, to pay Mrs Bauer and Mrs Broßonn an allowance in lieu of the paid annual leave not taken by their spouses before their death. 72. The Court has already held that Article 7(1) of Directive 2003/88 satisfies those criteria of unconditionality and sufficient precision, as it imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved that is not coupled with any condition regarding application of the rule laid down by it, which gives every worker entitlement to at least four weeks' paid annual leave. That article thus fulfils the conditions required to produce direct effect (see, to that effect, judgment of 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, paragraphs 34 to 36). 75. Since Article 7 of Directive 2003/88 fulfils, as is apparent from paragraphs 72 and 73 of the present judgment, the conditions required to produce direct effect, it follows that Mr Bauer, or in the light of his death, his legal heir, has, as is clear from the case-law of the Court referred to in paragraphs 70 and 71 of this judgment, the right to obtain, from Stadt Wuppertal, an allowance in lieu of paid annual leave acquired under that provision and not taken by the individual, national courts being, in that regard, required to disapply national legislation which, like that at issue in the main proceedings, precludes the award of such an allowance. 76. However, as regards the dispute in the main proceedings in Case C-570/16 between Ms Broßonn, as the legal heir of her late husband, and his former employer, Mr Willmeroth, it should be recalled that, according to the Court's settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. If the possibility of relying on a provision of a directive that has not been transposed, or has been incorrectly transposed, were to be extended to the sphere of relations between individuals, that would amount to recognising a power in the European Union to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations (judgment of 7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraph 42 and the case-law cited). 77. Thus, even a clear, precise and unconditional provision of a directive seeking to confer rights on or impose obligations on individuals cannot of itself apply in a dispute exclusively between private persons (judgment of 7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraph 43 and the case-law cited). 78. As the Court has already held, Article 7 of Directive 2003/88 cannot therefore be invoked in a dispute between individuals in order to ensure the full effect of the right to paid annual leave and to set aside any contrary provision of national law (judgment of 26 March 2015, Fenoll, C-316/13, EU:C:2015:200, paragraph 48). 79. In the light of the foregoing, it is necessary, secondly, to examine the scope of Article 31(2) of the Charter, in order to determine whether that provision, for which it has been established, in paragraphs 52 to 63 of the present judgment, that it is intended to apply to situations such as those in the main proceedings and must be interpreted as meaning that it precludes legislation such as that at issue in the main proceedings, may be invoked in a dispute between individuals, such as that arising in Case C-570/16, in order to require that the national court sets aside that national legislation and grants the deceased worker's legal heirs an allowance, payable by the former employer, in lieu of paid annual leave not taken to which that worker was entitled under EU law at the time of his death. 84. By providing in mandatory terms that 'every worker' has 'the right' 'to an annual period of paid leave' without referring in particular in that regard — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale (C-176/12, EU:C:2014:2) — to 'the cases and ... conditions provided for by Union law and national laws and practices', Article 31(2) of the Charter reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave. Private parties Bauer (6) But since Bauer it is clear that the Charter indeed can have horiontal direct effect! 87. With respect to the effect of Article 31(2) of the Charter [right to paid annual leave] on an employer who is a private individual, it should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices andagencies of the European Union....and to the Member States only whenthey are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter andcannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility. Q5. What is your opinion about the Court's judgment in the Bauer case? 88. First of all, as noted by the Advocate General in point 78 of his Opinion, the fact that certain provisions of primary law are addressed principally to the Member States does not preclude their application to relations between individuals (see, to that effect, judgment of 17 April 2018, Egenberger, C-414/16, EU:C:2018:257, paragraph 77). 89. Next, the Court has, in particular, already held that the prohibition laid down in Article 21(1) of the Charter is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute with another individual (judgment of 17 April 2018, Egenberger, C-414/16, EU:C:2018:257, paragraph 76), without, therefore, Article 51(1) of the Charter preventing it. 90. Finally, as regards, more specifically, Article 31(2) of the Charter, it must be noted that the right of every worker to paid annual leave entails, by its very nature, a corresponding obligation on the employer, which is to grant such periods of paid leave.

Free Movement of Goods: 1. Financial barriers 2. Non Financial barriers

Prohibitions on: o Quantitative import restrictions and measures having equivalent effect (MEE) = Art. 34 TFEU o Quantitative export restrictions and measures having equivalent effect (MEE) = Art. 35 TFEU

CASE: Roquettes Frères

Roquette Frères v Council was a ruling by the European Court of Justice which annulled a Regulation because the European Council failed to consult with the European Parliament. Under Article 113 of the Treaty on the Functioning of the European Union bills covering areas such as home affairs, State aids and the harmonisation of indirect taxation must be passed via the First Special Legislative Procedure. Under this the bill starts with the European Commission and then go to the Council. The Council are required to consult with the Parliament, but do not need to follow the Parliament's opinion. This can be contrasted with the Second Special Legislative Procedure, under which parliament may accept or reject a proposal. Roquette Freres v Council established that, although not binding, consultation with the Parliament is a mandatory part of the First Special Legislative Procedure. Issue: Validity of Council Regulation that was adopted without the Council having received the opinion of the European Parliament. Rule: Art. 43(2) TFEU (procedural requirement of obtaining opinion of EP), Art. 263 TFEU (infringement essential procedural requirement). Analysis: §33: EP's legislative power represents fundamental democratic principle §35: Consultation of EP is essential procedural requirement §36: Council did not exhaust all possibilities for obtaining preliminary opinion of EP. Conclusion: Council Regulation is void

CASE: Schmidberger

Schmidberger: - Roadblock by protest group for 30 hours. - Result: Mr. Schmidberger, who ran trucking company, suffered losses. A restriction to trade (compare to Spanish Strawberries): Para. 64....the fact that the competent authorities of a Member State did not ban a demonstration which resulted in the complete closure of a major transit route such as the Brenner motorway for almost 30 hours on end is capable of restricting intra-Community trade in goods and is therefore a MEE within the meaning of Articles 34 and 35 TFEU, read together with Article 4(3) TEU.... ... but the MEE can be justified by Austria: 65. NOT protection of the environment, NOT public health protection (Art. 36), BUT: 74. Since both the EU and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by EU law, even under a fundamental freedom guaranteed by the Treaty such as the free movement of goods. And proportionate: literally balancing the interests at stake. Para. 81: ...the interests involved must be weighed having regard toall the circumstances of the case in order to determine whether a fair balance was struck between those interests: - request for demonstration, approval by Austria- only once and only for 30 hours.- demonstrators were exercising their fundamental rights- Austria took measures to limit as far as possible the disruption to road traffic.- Etc. No violation by Austria of Art. 34 because of the RoR 'protection offundamental rights', para. 93

Discuss one difference and one similarity between (a) the European Council, and (b) the Council (of Ministers).

Similarity: The Council of Ministers and the European Council are both made up of 28 different national representatives (although the CoM is on a ministerial level and the EC is on a Head of State level) Difference: The majority of decisions within the CoM are governed by the QMV procedure as held in Lisbon (except for relevant exceptions), while the majority of decision within the European Council are made on the basis of unanimity.

Why in the Gourmet case (C-405/98) did the Swedish government have to justify its rules on advertisements for alcoholic beverages by invoking an Article 36 TFEU exception (namely the protection of public health), although these Swedish rules clearly related to "selling arrangements" within the meaning of the Keck judgment.

Sweden banned all advertisement for alcohol on TV and in magazines. Itheld: doesn't affect import wine other than domestic wines. CJEU: Second Keck condition (must affect all products in the same manner), is not fulfilled in Gourmet. Para. 18, 21 & 25: complete ban is likely to harm sales if imported products more than it is for Swedish brands. So this national measure did fall under scope of 34... ... and so Sweden had to justify this prohibition

Explain what is meant by the "principle of conferral."

TEU Art. 5(2): Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. Summary: Any competences not assigned to the EU by statue is reserved for the Member States

Explain what is meant by the "principle of subsidiarity."

TEU Art. 5(3): Under the principle of subsidiarity, in areas which do not fall within its exclusive competences(see Q.3), the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather by reason of the scale or effects of the Proposed action, be better achieved at Union level. --> Dutch PM statement: EU competence where it makes sense in the light of the task (i.e. exclusive competences over single market) but member states where integration does not make sense to fulfil the tasks of the treaties

Explain what types/categories of competences the European Union possesses.

TFEU Art. 2(1-5) introduces the 5 different types of competences that exists within the Union a. Exclusive Competences (TFEU Art. 2(1) read in combination with TFEU Art. 3): The Union can make policy unilaterally and does not need to consult or seek agreement of the Member States in these areas; i. Customs Union ii. Establishing competition rules to enable the functioning of the internal market iii. Monetary policies for the Member States in the Euro (see the statue of the European Central Bank and TFEU Articles 119 and 127(1) and (2) iv. Conservation of Marine biological resources pursuant to the Common Fisheries Policy (see TFEU Art. 38-44) v. Common Commercial Policy vi. Conditional exclusivity for the conclusion of International Agreements where the legal basis foresees this (see TFEU Art. 3(2)) b. Shared Competences (TFEU Art. 2(2) read in combination with TFEU Art. 4). The Member States and the Union shall share competences and must exercise power over these in tandem (see Art. 4(3) and the principle of Sincere Cooperation) i. Internal Market ii. Social policy iii. Economic, Social and Territorial Cohesion iv. Agriculture and fisheries (excluding the Conservation of Marine Life) v. Environment vi. Consumer protection vii. Transport viii. Trans-European Networks (i.e. Trans European Train Network) ix. Common safety Concerns in public health matters x. Research, Technological Development and Space and "shared" since both have competences as long as the Union's actions does not stop the Member States from also taking action in that area c. Coordination Competences within the scope of Economic, Employment and Social Policies (TFEU Art. 2(2 & 4) read in combination with Art. 5 i. Ensures common standards in employment and relates mainly to the Council and Member States d. Supplementary Competences (TFEU Art. 2(5) read in combination with TFEU Art. 6 i. Protection and Improvement of Human Health ii. Industry iii. Culture iv. Tourism v. Education, Vocational Training, Youth and Sport vi. Civil Protection vii. Administrative Cooperation

Describe on which treaties the present European Union is founded.

The contemporary European Union is founded on the results of the Lisbon Treaty, which reformed the necessary governing treaties and established the current treaty body; (1) The Treaty on European Union (TEU), which governs larger goals and outsets of the Union; (2) The Treaty on the Functioning of European Union (TFEU), which in details lays out procedural and legal instruments and objectives of the Union and its institutions; (3) The Charter of Fundamental Rights of the European Union (CFR), which is a summary of all fundamental rights found within the European Union, its member states, international law as well as the European Convention on Human Rights (ECHR); (4) the EurAtom treaty, which governs the legal and peaceful use of nuclear power for energy production; (5) The General Principles of EU law are also generally held to be principle governing mechanisms of the EU, however case-law of the CJEU makes this more ambiguous so focus on the first four

What is the potential consequence of the Union's legislature using the wrong legal basis in adopting a legislative measure? Include in your answer the relevant case law of the CJEU prescribed for this week.

The wrong legal basis for the issuing of a legislative act (i.e. Regulation, Directive and Decision) can result in the annulment of that act, as was the case in the first Tabacco Advertising Case [C-376/98] Important Paragraphs from the case: Par. 83 of the judgment: "Those provisions [see below], read together, make it clear that the measures referred to in Art. 100a(1 (...) are intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it bests in the community legislature a general power to regulate the internal market would not only be contrary to the express wording of the provision cited above but would also be incompatible with the principles of [conferral]. Par. 84 of the judgment: "Moreover, a measure adopted on the basis of Art. 100a (...) must genuinely have as its object the improvement of the conditions [of the internal market]. If a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to jusity the choice of Art. 100a as a legal basis, judicial review of compliance with the proper legal basis might be nugatory. The Court would then be prevented from discharging the function entrusted to it (...) of ensuring that the law is observed in the interpretation and application of the treaty. Par. 85 of the judgement: "So, in considering whether Art. 100a was the proper legal basis, the Court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (...) Par. 114 of the judgement: "In those circumstances, it must be held that the Community legislature cannot rely on the need to eliminate distortions of the competition, either in the advertising sector or in the tobacco products section, in order to adopt the Directive on the basis of Articles 100a, 57(2) and 66 of the (OLD) treaty (The new paragraphs are: Art. 114, Art. 53 and 62 TFEU). Judgement: "On those grounds, The Court, hereby: Annuls Directive 98/43/EC of the European Parliament and of the Council (...)"

Rule of Reasons Exceptions

There are 2 types of justifications for barriers to trade: 1. Justifications in the Treaty: Article 36 TFEU 2. Justifications based on ECJ case law: Cassis de Dijon = Rule of Reason exceptions --> - Non-exhaustive list of other public interests - New exceptions may be accepted by the ECJ every day! - First one arguably introduced by Cassis de Dijon Cassis de Dijon (1979), para. 8: - Obstacles to movement within the Community [EU] resulting from disparitiesbetween the national laws relating to the marketing of the products in questionmust be accepted in so far as those provisions may be recognized as beingnecessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. - Or already five years earlier accepted/hinted at, in Dassonville? Para. 6: In the absence of a Community system guaranteeing for consumers the authenticity of a product's designation of origin, if a Member State takes measures to prevent unfair practices in this connection, it is however subject to the condition that these measures should be reasonable and that the means of proof required should not act as a hindrance to trade between Member States and should, in consequence, be accessible to all Community nationals. More recent examples: - Schmidberger case 2003, protection of the right to demonstrate = freedom of expression, assembly. More generally: protection of fundamental rights. - Reinheitsgebot: protection of the consumer (and also public health protection = 36 TFEU).

Explain what is meant by the doctrine of "implied powers" and its importance to EU decision making. Include in your answer the relevant case law of the CJEU prescribed for this week.

Things to note before answering the question: a. "[T]here can be disagreement as to the ambit of a particular Treaty Articles, irrespective of the category of competence that applies to the area, more especially when the Article is case in broad terms" (see. Working Time Directive Case) b. "The CJEU has in general been disinclined to place limits on broadly worded Treaty Articles. It can however do so. In the Tobacco Advertising Casethe CJEU held that a directive relating to tobacco advertising could not be based on Article 95EC" (now Art. 114 TFEU) for instance c. However, subsequent case law has shown that the ECJ is willing to accept the use of Art. 114 as the legal basis for the enacted measure (see 2006 second Tabacco Advertising Case) Now on implied power: EU institutions may claim that a particular Treaty Article contains an implied power to make the particular regulation. While the notion of implied power is well known in domestic and international legal systems, its meaning is more contestable. Under the narrower formulation, the existence of a given power impliesthe existence of any other power that is "reasonably necessary" for the exercise of the former. Under the wider formulation, the existence of a given objective implies the existence of power reasonably necessary to attain it. The narrow sense of implied power has long been accepted. However, the CJEU has also endorsed the wider formulation. TBH, there is other case-law that fits way better and explains a lot more what the view of the CJEU is. Those cases are: Par. 27 and 28 of Germany v. Commission (281, 283-285 and 287/85) and Par. 48 of Commission v. Council (C-176/03) For instance: Par. 28 of Germany v. Commission: "(...) it must be emphasised that where an Article of the EEC Treaty (...) confers a specific task on the Commission it must be accepted if that provision is not to be rendered wholly ineffective, that it confers on the Commission necessarily and per sethe powers which are indispensable in order to carry out that task. Accordingly, the second paragraph of Art. 118 must be interpreted as conferring on the Commission all the powers which are necessaryin order to arrange the consultations. (...)"

The competences/jurisdiction of the Court of Justice of the EU can we divided into three categories. Discuss these categories of competences of the Court.

Three key legal roles: i. First, there is the role of Constitutional Court deciding the inter-institutional disputes and disputes about the division of powers between EU institutions and member states. ii. Second, there is the role of supreme court with the procedure of preliminary ruling having the purpose of uniform application and interpretation of EU law. iii. Third, there is the role of administrative court, as when the ECJ and the CFI are called upon by private parties to offer protection against illegal executive acts by EU institutions

CASE: Henn and Darby

What happened? - Export of "several boxes of obscene films and magazines" (porn) fromDenmark, via Rotterdam, to UK. - Prohibited in UK (import ban) because of public interestpublic morality, in Art. 36 Para. 15. High standard: "...for each MS to determine in accordance with its own scale of values..." Para. 16. "Each Member State is entitled to impose prohibitions on importsjustified on grounds of public morality for the whole of its territory" Para. 17. ... Article 36... means that a Member State may, in principle, lawfully impose prohibitions on the importation from any MS of articles which are of an indecent or obscene character as understood by its domestic laws and that such prohibitions may lawfully be applied to the whole of its national territory even if, in regard to the field in question, variations exist between the laws in force in the different constituent parts of the Member State concerned". Variations? Some countries in UK: possession of porn is ok, or trade subject to exceptions (education, science, artistic) Still a proportional restriction - last sentence of Art. 36. "22. ... if a prohibition on the importation of goods is justifiable on grounds of public morality and if it is imposed with that purpose the enforcement of that prohibition cannot, in the absence within the Member State concerned of a lawful trade in the same goods, constitute a means of arbitrary discrimination or a disguised restriction on trade contrary to Article 36". general purpose domestically = also to prevent lawful trade.

Decision-making competences EU: Legal Basis Disputes before the CJEU

Working Time Directive Case: - Directive on maximum working hours: social policy or an unforeseen case? - Council: Art. 153 TFEU: "improvement in particular of the working environment to protect workers' health and safety" = OLP = QMV in Council - UK: no specific legal basis exists, hence Art. 352 TFEU = Spl = Unanimity in the Council - Court: working too long is bad for your health, so Art. 153 TFEU is the correct legal basis Tobacco Advertising Case: - Directive prohibiting almost all forms of advertisements for tobacco products: internal market or public health protection? - EP and Council: Art. 114: good for free movement, creating a level playing field = OLP = QMV in Council - Germany: smoking is bad for your health, so Art. 168 = also OLP but prohibition of harmonization - Court: lot of forms of advertisements for tobacco products that are prohibited have nothing to do with free movement nor with competition (paras. 98 and 99). So not Art. 114. So annulment of the Directive.

During the first tutorial we briefly discussed the "foundational values" on which the European Union and its Member States are based. Is there any way the European Union can hold a Member State that breaches these values - for example, by dramatically curtailing the freedom of expression or by affecting the independence of the national judiciary - to account? If so, how?

Yes, there is. Per Art. 7 (TEU), either the 1/3rdof all member states, the European Parliament or the European Commission can propose to the Council to initiate infringement procedures against a country that is found to be in "serious breach" (high threshold by the CJEU) of values enlisted in Art. 2 TEU. The procedure can, according to Art. 7(3) (TEU) ultimately lead to the revocation of voting rights of the infringing Member State within the Council. There are currently infringement procedures in effect against Hungary (refugee quota and Rule of Law), Poland (refugee quota and Rule of Law) and the Czech Republic (refugee quota) and such moves are being considered against Romania and Bulgaria.

How does EU law relate to (public) international law and in particular, a decision of the United Nations Security Council?

a. Explanation through Kadi case: Facts: Suspected Taliban terrorist. UNSC Resolutions: put on sanctions list. The EU implemented with Regulation (stating exactly the same) & froze Mr. Kadi's assets Mr. Kadi held that his rights of due process & property had been violated. He asked for annulment of the Regulation (right to be heard, access to court, justification). General Court: Can't annul, because indirectly annulling UNSC Resolution! "Charter of the UN prevails over any other form of law." CJEU judgement: NO - completely different view. Don't care, going to review respect for human rights in full. Annulled the Regulation, since a fundamental right was violated. No international agreement - incl the UN Charter - can trump EU primary law, of which general principles are part. Para. 285, Despite Art. 103 UN Charter: "In the event of a conflict between the obligations of theMembers of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." Kadi --> Hierarchy: 306. Article 300(7) EC provides that agreements concluded under the conditions set out in that article are to be binding on the institutions of the Community and on Member States. 307. Thus, by virtue of that provision, supposing it to be applicable to the Charter of the United Nations, the latter would have primacy over acts of secondary Community law (see, to that effect, Case C-308/06 Intertanko and Others [2008] ECR I-0000, paragraph 42 and case-law cited). 308. That primacy at the level of Community law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part. 316. As noted above in paragraphs 281 to 284, the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.

sociaal fonds diamantarbeiders

issue: Clarify concept of charge having an effect equivalent to a customs duty and the scope of the prohibition laid down therein. Rule: Art. 28 and 30 TFEU Analysis: The purpose of the abolition of customs barriers is not merely to eliminate their protective nature (§11/14). Customs duties are prohibited independently of any consideration of the purpose for which they were introduced and the destination of the revenue obtained therefrom (§11/14). Any pecuniary charge imposed by reason of the fact that the goods cross a frontier constitutes an obstacle to the movement of goods. Charge having an equivalent effect is a complementary concept "Any pecuniary charge which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense, constitutes a CEE, even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect or if the product on which the charge is imposed is not in competition with any domestic product" (§15/18). Exception: "In certain circumstances a specific service rendered may form the consideration for a possible proportional payment for the service in question." Conclusion: Arts. 28 and 30 TFEU include any pecuniary charge imposed on goods by reason of the fact that they cross a frontier. Court is more interested in the effect not the purpose of the pecuniary charge Any charge however small or whatever purpose constitutes a charge having equivalent effect of customs duties as long as the product crosses borders also relevant case law to prove emphasis on effect not purpose: Commission v Italy (can't find it anywhere though, read it in the book and tutorial answers)

Decision-making competences EU: Adding Level 3

(First look at image) Delegation Art. 290(1) TFEU: "A legislative act may delegate to the Commission the power to adopt non-legislative acts of general applicationto supplement or amend certain non-essential elementsof the legislative act. Implementation Art. 291(1)(2) TFEU: "1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts. 2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission...."

1997 Treaty of Amsterdam

- Amendments EC Treaty, e.g. employment policy added - Amendments EU Treaty, notably 'communitarization' of migration policy and civil matters (became Title IV of the EC Treaty) Only criminal law remained in the third pillar -> new name: Police and Judicial Cooperation in Criminal Matters (PJCCM)

Briefly describe the most important changes that were brought about by the Treaty of Maastricht to the already existing European Communities.

- Established economic (single market) and monetary union (EMU - European Monetary Unit -> precursor to the Euro) - Established a common and foreign and security policy - Strengthened the European Parliament immensely and introduced the co-decision procedure (based on the principle of parity and means that neither institution (European Parliament or Council) may adopt legislation without the other's assent.) - Established principle of subsidiarity (EU law only where it makes sense) and proportionality (EU only where the treaties allow) - Created EU "citizenship" -> NO EU passport but every EU citizen gets the same rights in each EU country (principle of non-discrimination)

1992 Treaty of Maastricht

- Establishment of the European Union, with its 3 'pillars' - Amendments to the EEC Treaty, notably EMU, also culture, etc. -> from EEC to EC Treaty The treaty founded the European Union and established its pillar structure which stayed in place until the Lisbon Treaty came into force in 2009. The treaty also greatly expanded the competences of the EEC/EU and led to the creation of the single European currency, the euro

1957 European Economic Community (EEC) & European Atomic Energy Community (EAEC) or simply Euratom (entry into force 1 January 1958)

- General and sectoral economic integration respectively - EEC: common market, fisheries, transport: The European Economic Community (EEC) was a regional organisation that aimed to bring about economic integrationamong its member states. It was created by the Treaty of Rome of 1957.

How to change EU law: two options:

- Ordinary revision procedure (Art. 48 (2-5)) - Simply revision procedure (Art. 48 (6-7))

2001 Treaty of Nice

- Preparing the EU for Eastern Enlargement -> mainly institutional changes came into force 2003 The Treaty of Nice reformed the institutional structure of the European Union to withstand eastward expansion, a task which was originally intended to have been done by the Amsterdam Treaty, but failed to be addressed at the time.

1973 First accessions

- UK, Ireland, Denmark joined: went from 6 to 9

1986 Single European Act (entry into force 1 July 1987)

- amendments to EEC Treaty, notably internal market ('Europe 1992'), also environmental protection - cooperation foreign affairs (European Political Cooperation) The Single European Act (SEA) was the first major revision of the 1957 Treaty of Rome. The Act set the European Community an objective of establishing a single market by 31 December 1992, and codified European Political Cooperation, the forerunner of the European Union's Common Foreign and Security Policy. It was signed at Luxembourg on 17 February 1986, and at The Hague on 28 February 1986. It came into effect on 1 July 1987, under the Delors Commission. A core element of the SEA was to create a single market within the European Community by 1992, when - it was hoped - the legislative reforms seen necessary would have been completed. To make the objectives possible, the SEA reformed the legislative process both by introducing the cooperation procedure and by extending Qualified Majority Voting to new areas. Measures were also taken to shorten the legislative process.

EU and Human Rights Art. 6 TEU: 1. HR as general principles of EU law 2. Accession EU to ECHR, but negative Opinion 2/13 3. Charter of Fundamental Rights of the EU 3. Charter of Fundamental Rights of the EU

- binding since Lisbon - 7 Titles - Scope of application: Art. 51(1) Charter = "The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union [...] and to the Member States only when they are implementing Union law." Institutions Digital Rights Ireland: annulment of the Data Retention Directive because it violates Articles 7 and 8 of the Charter (privacy; protection personal data) Member States Akerberg Fransson: - "all situations governed by European Union law, but not outside such situations". - In casu? "The tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT" àYES! Private parties AMS: Does the Charter have horizontaldirect effect?? à "It is necessary to ascertain .... whether Article 27 of the Charter....can be invoked in a dispute between individuals" (para 41) Private parties But since Bauerit is clear that the Charter indeed can have HDE: 87 With respect to the effect of Article 31(2) of the Charter [right to paid annual leave] on an employer who is a private individual, it should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union....and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.

CASE: Digital Rights Ireland

Digital Rights Ireland: annulment of the Data Retention Directive because it violates Articles 7 and 8 of the Charter (privacy; protection personal data) Lobby group against controversial EU Data Retention Directive, which obliged telecom providers to retain phone no's, IP-addresses, location data & other things for 6 monts - 2 years. Purpose Directive: to prevent, investigate, detect and prosecute serious crimes such as organized crime and terrorism. Art. 7, 8 & 11 EU Charter Can you limit a right? - Art. 52(1). 1. Provided by law2. Respect the right's essence3. Proportionality CJEU: proportionality harmed! No clear rules governing the extent of the interference, not sufficient safeguards to ensure effective protection of data. Paras. 47-48, 53-54 (considerations) 65 - 69 (decision). Directive = invalid. 51. As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.52. So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court's settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C-473/12 IPI EU:C:2013:715, paragraph 39 and the case-law cited). 65. It follows from the above that Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary. 68. In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data (see, to that effect, Case C-614/10 Commission v Austria EU:C:2012:631, paragraph 37). 69. Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.

In the case Reinheitsgebot (Case 178/84, Commission v. Germany) from 1987 the Court of Justice ruled that the German rules on ingredients in beer - only barley, hops, yeast and water were allowed for the manufacturing of beers in Germany - violated the rules on the free movement of goods (now Article 34 TFEU). This judgment was, however, delivered before the Keck judgment (which was handed down by the Court in 1993). Do you think that the Court now, in 2018 and therefore after the Keck judgment, would rule differently in a case similar to that of Reinheitsgebot?

Doesn't matter. Even after Keck the CJEU could say that the German rules about the substance of beer fall under Art. 34 - because they're concerning product requirements (and not selling arrangements).

1954 Plan for European Defense Community (EDC) & European Political Community (EPC)

EDC: The treaty would have created a European Defence Community (EDC) with a pan-European defence force. EPC: Was proposed in 1952 as a combination of the existing European Coal and Steel Community (ECSC) and the proposed European Defence Community (EDC). --> both were a failure: 'no French soldiers under German officers' = it was too early for the political community: French parliament said no

2004 Treaty establishing a Constitution for Europe

Negative referenda France and The Netherlands; no entry into force

EU and Human Rights Art. 6 TEU: 1. HR as general principles of EU law 2. Accession EU to ECHR, but negative Opinion 2/13 3. Charter of Fundamental Rights of the EU 1. HR as general principles of EU law

- initially CJEU: no written list, no HR protection against acts of the EEC/EU institutions - reaction national courts, esp. Bundesverfassungsgericht: okay, then we will do the job (Solange I) - CJEU: HR do exist in the EU legal order, but as unwritten general principles (= part of primary EU law); 'inspiration' drawn from national constitutions and HR Treaties, esp. the ECHR See Internationale Handelsgesellschaft: "Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice" (para. 4)

All EU Institutions (art. 13 TEU)

1. European Council [not Council of Europe?] 2. Council (of Ministers) 3. (European) Commission 4. European Parliament 5. Court of Justice of the EU 6. European Central Bank 7. Court of Auditors

Two types of justifications for barriers to trade:

2 types: 1. Justifications in the Treaty: Article 36 TFEU 2. Justifications based on ECJ case law: Cassis de Dijon = Rule of Reason exceptions or Mandatory Requirements or Imperative requirements or Overriding Requirements

2007 Treaty of Lisbon (entry into force 1 December 2009)

Abolishment of the EC and the three pillar structure of the EU --> Current Structure EU

Lisbon Amendments model

After Lisbon: The basis of the EU: - TEU - TFEU - the Charter

European Parliament a. Composition b. Tasks/competences c. Voting rules

Art 14 TEU a. 751 members, directly elected since 1979, for 5 years, represents Union's citizens, members form European political parties b. - Legislator (together with Council): sometimes opinion or consent (under 'special legislative procedures') --> Roquette Freres - Budgetary authority (also together with Council) - Supervision policy Commission: o 'elect' President and approve Commission as a body (Art. 17(7) TEU) o send Commission home because of its policy by adopting motion of censure (Art. 17(8) TEU) c. Simple majority (of votes cast), unless... (Art. 231 TFEU)

European Commission a. Composition b. Tasks/competences c. Voting rules

Art 17 TEU a. - Always one commissioner per MS à but 2/3 rule since Lisbon (Art. 17(5) TEU) à but Irish referendum: still one commissioner per MS - Appointed for 5 years; completely independent b. Tasks: 17(1) TEU - (almost) exclusive right of initiative - adopt non-legislative acts (delegated, implementing acts) - supervisory tasks, e.g. violations cartel prohibition by companies or action for infringement against MS (Art. 258 TFEU) - negotiate EU international treaties, e.g. CETA and TTIP (not CFSP) c. Simple majority (of members), Art. 250 TFEU

Discuss how, i.e. with what majority, the Council of Ministers adopts its decisions.

Following the reforms to QMV post-Lisbon, about 80% of legislation is passed using QMV. Art. 16(3) TEU holds that, where applicable (see Art. 238(4) TFEU and Art. 238(1) TFEU), the Council should use a qualified majority of 55% (currently 15) of Member-States representing 65% (currently 330 Million) of the population of the Union.

CASE: Gysbrechts

Gysbrechts and Santurel were found to have required consumers not residing in Belgium to provide the number of their payment card before expiry of the period for withdrawal. In appeal, the national court asked whether articles 28 to 30 EC precluded a provision relating to distance selling which prohibited a supplier from requiring an advance or any payment before expiry of the period for withdrawal. whut? what did this case establish

Justifications for barriers to trade:

I. Free trade in the EU is not an absolute right II. Public interests may justify obstacles to trade: e.g. public morality, public policy, public security, public health, consumer protection, environmental protection, culture, social policy, etc. III. If justification (or: derogation; exception) is recognized, MS may still apply their national measures that form an obstacle to the free movement of goods Justifications in the Treaty: Article 36 TFEU Justifications based on ECJ case law: Cassis de Dijon = Rule of Reason or Mandatory Requirements exceptions

The system of the internal market

Image

Principle of Proportionality

Measure of MS that needs justification (Treaty or RoR) must be proportional: - Suitable/appropriate: national measure must be capable to protect the interest that needs protection - causal link - Necessary: MS must choose the least restrictive alternative • Remember?Also in Art. 5(4) TEU but there it is addressed to EU institutions: "Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties".

CASE: Akerberg Fransson

Member States - Akerberg Fransson, 2013 - Mr. Akerberg Fransson didn't pay taxes. Administrative sanction & criminal prosecution. - Issue: Whether national rules for administrative and criminal penalties applicable to infringements of VAT legislation can be considered implementation of Union law - Art. 51(1): - "all situations governed by European Union law, but not outside such situations" - In casu? "The tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT" YES! 19. The Court's settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures. 20. That definition of the field of application of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to this effect, Case C-279/09 DEB [2010] ECR I-13849, paragraph 32). According to those explanations, 'the requirement torespect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law'. 21. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter. 27. It follows that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1) of the Charter.28. The fact that the national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union. Contentious issue: Interpreting Article 51 (1) CFR Directive 2006/112/EC, MS take necessary measures to collect VAT ≠ (is not the same as) MS legislation: tax penalties and criminal proceedings - not a transposition of the directive. The situation might fall within the 'scope' of EU law but Member States were not 'implementing' EU law. 'Implementing EU law' - wording reflects the desire of Member States to limit the scope of the Charter Still, paras. 19-21: the Court equated "implementation" with "scope of application" (Ne bis in idem: not harmed if administrative sanction is not of criminal nature. Up to national court to decide, para 1&2 of decision)) Facts Fransson was fined for tax avoidance in 2007, then he got criminal proceedings against him in 2009, he says this is a violation of fundamental rights A50 that nobody should be punished twice for the same fault Question If this case falls within the scope of EU law Can he be punished the second time? Court ECJ only has jurisdiction over national legislations that aims to implement EU law, in this case the MS has the obligation to collect taxes and counter all wrongdoings affecting the financial interest of the EU, so ECJ has jurisdiction The principle that you can't be punished twice only applies if the first punishment was criminal in nature, to determine if a punishment is criminal in nature is up to the MS, HR charter only applies to MS when they are implementing union law, ECJ can force MS to do it because ECJ has jurisdiction, but if you dive deeper, they can't because it is outside their jurisdiction to see if the punishment is criminal

The European Parliament is very dissatisfied with the policy conducted by the Commissioner for external relations. It does not have a problem with the policy of the other members of the European Commission. Can the European Parliament force the Commissioner for external relations to resign?

No, Art. 247 TFEU provides for a Commissioner to be "compulsorily retired" if he/she no longer fulfils the conditions for the job, or for serious misconduct. This can only occur via an application to the Court of Justice of the European Union for removal, which can only be made on-behalf of the Council. Furthermore, Art. 17(6) TEU provides for the resignation of an individual Commissioner following the request of the Commission President. However, there is not legal instrument for Parliament to force the resignation of an individual commissioner. Per Art. 234 TFEU (Motion of Censure) the EP only has the right to force the entire Commission to resign following a 2/3rds majority vote for aMotion of Censure.

Turkey is currently a "candidate" country for membership of the European Union. If the Council were to adopt a decision to approve the admission of Turkey to the European Union, would Turkey thereby become a Member State of the European Union?

No, ever since the Single European Act of 1986, the European Parliament has been given a veto right. The right of Parliament to veto the accession of a new member post-Lisbon can be found in Art. 49 TEU, which states the Council may only act after "receiving the consent of the European Parliament."

1981 Accession Greece

Now 10 MS

1985 Accession Spain and Portugal

Now 12 MS

The Italian customs authorities have heard rumors about the very bad quality of Polish vodka; it seems that in Poland several drinkers of this liquor fainted after just one drink. Italy therefore decides to inspect all bottles of vodka imported from Poland at the Italian borders. The Polish exporters of vodka have to bear the costs of these inspections. Do you think that the inspections and/or the obligation for the importers to pay for these inspections are breaching EU internal market law?

Payment for inspections are CEEs - and inspections of vodka itself is an MEE. CEE (Art. 30) cannot be justified (being applied discriminatorily). MEE (Art. 34) potentially with a treaty exception (Art. 36, public health) and maybe a Rule of Reason. BUT in both cases Italy needs to prove proportionality (= suitability + necessity).

What was the reason why the differentiated excise-system devised in Finland to stimulate the green production of electricity, at issue in the Outokumpu case (C-213/96), did not survive the Court of Justice's scrutiny?

The ECJ has emphasize that a tax system will be compatible with Art. 110 only if it excludes "any possibility" of imported products being taxed more heavily than similar domestic goods (see Case 112/84 Humblot v. Directeru des Services Fiscaux). Applying this to the Outokampu case; The first paragraph of TFEU Art. 110 precludes an excise duty which forms part of a national system of taxa- tion on sources of energy from being lev- ied on electricity of domestic origin at rates which vary according to its method of production while being levied on imported electricity, whatever its method of production, at a flat rate which, although lower than the highest rate applicable to electricity of domestic ori- gin, leads, if only in certain cases, to higher taxation being imposed on imported electricity. TFEU Art. 110 is infringed by a system of internal taxation where the taxation on the imported product and that on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product.

1951 European Coal and Steel Community (ECSC) (entry into force 1 July 1952)

The European Coal and Steel Community (ECSC) was an organisation of six European countries created after World War II to regulate their industrial production under a centralised authority. It was formally established in 1951 by the Treaty of Paris, signed by Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany. The ECSC was the first international organisation to be based on the principles of supranationalism,[2] and started the process of formal integration which ultimately led to the European Union. Characteristics: - Sectoral integration - 'Supranational' (High Authority) - Six participating Member States: France, Italy, Germany, NL, Belgium, Luxembourg - Concluded for 50 years (the treaty expired in 2002, and the organisation officially ceased to exist)

1965 Merger Treaty (entry into force 1 July 1967)

The Merger Treaty was a European treaty that unified the executive institutions of the European Coal and Steel Community (ECSC), Atomic Energy Community (Euratom) and the Economic Community(EEC). - 1 Commission and 1 Council for 3 Communities (they merged the 3 Commissions and 3 Councils into 1 Commission and 1 Council)

Decision-making competences of the EU: Treaties some 300-400 pages, yet there are some 80.000 pages of legal rules emanating from the EU. Where is the rest? Primary EU law <--> Secondary EU law

The Treaties, notably the TFEU are framework treaties -> detailed rules in decisions of the EU institutions. Article 5(2) TEU: "Under the principle of conferral [or: attribution of powers], the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States." Therefore an appropriate legal basis must be found - the TFEU contains a lot of these legal bases which enable the institutions to adopt binding (Regulations, Directives, etc.) and non-binding ('soft law') acts. Each legal basis contains: topic, applicable decision-making procedure. Sometimes also type of legal instrument, sometimes prohibition of harmonization. Examples: see image

CASE: Van Gend en Loos

Van Gend en Loos (1963) was a landmark case of the European Court of Justice which established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Community's member states. This is now called the principle of direct effect. The case is acknowledged as being one of the most important, and possibly the most famous development of European Union law.

discriminatory tax measures (vs. customs duties)

caught under TFEU 110-113 aim: prevent the objective of articles 28-30 from being undermined by discriminatory internal taxation - while art 28-30 deal with charges/goods that were introduced at the time of importation, art 110-113 deal with charges that were imposed domestically after importation - ECJ more willing to allow for defences of these ones: (1) national autonomy (2) fiscal choices --> notably: only for indirect discrimination, direct discrimination is always prohibited

Mr. Nikolescu imports alcoholic drinks from Hungary into Romania. He is requested by the Romanian authorities to produce a certificate of origin of the beverages he imports from Hungary in order to be able to market these beverages in Romania. His lawyer is of the opinion that this requirement to show a certificate of origin violates the rules of the internal market. What do you think?

• Question resembles Dassonville- could be prohibited on that basis. Which para? • Paras. 8 - 9.